Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 1 of 56
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`Defendants.
`NATURE OF THE CASE
`1.
`Through this action, Plaintiff Northwest Environmental Advocates (“NWEA”)
`challenges the failure of Defendant United States Environmental Protection Agency (“EPA”) to
`ensure the protection and restoration of the marine waters of Puget Sound in the State of
`Washington in violation of the mandates of the Clean Water Act (“CWA” or “Act”), 33 U.S.C. §
`1251, et seq.
`2.
`For over three decades, the marine waters of Puget Sound have been known to be
`impaired by dangerously low levels of dissolved oxygen, caused by nitrogen pollution, and high
`levels of toxic pollutants. Along with oxygen depletion, nitrogen pollution fuels extensive algal
`
` COMPLAINT
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`1
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`Plaintiff,
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`
`
`
`
`Case No. _____________________
`
`COMPLAINT
`Pursuant to the Administrative
`Procedure Act, Clean Water Act
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`NORTHWEST ENVIRONMENTAL
`ADVOCATES, an Oregon non-profit
`corporation,
`
`
`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,
`
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 2 of 56
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`blooms in Puget Sound, some toxic to people, some toxic to shellfish, and some that are upending
`the food chain that supports imperiled Chinook salmon and orca whales.
`3.
`The quality of water in Puget Sound and its tributaries has degraded as population
`has increased and is predicted to further degrade based on estimates of future population growth.
`The Washington Department of Ecology (hereinafter “Ecology” or “Washington”) predicts a 40
`percent increase in nitrogen levels in the next few decades. Combined with climate change, this
`pollution increase is predicted to significantly worsen deleterious dissolved oxygen levels in
`Puget Sound.
`4.
`Nitrogen is a form of nutrient pollution that, while essential for the growth of
`plant life, in excess leads to excessive growth of algae that die and, in decaying, consume life-
`sustaining oxygen from water. Nitrogen causes myriad cascading environmental effects including
`the following: more widespread and longer-lasting algal blooms; increases in harmful algal
`blooms (“HAB”) that create toxins; depleted dissolved oxygen; increased acidification of waters
`that, in turn, causes effects such as thinning of shellfish shells; an explosion of jellyfish
`populations; and fundamental changes to the food web that include the growth of dinoflagellate
`algae that ravage the diatoms and copepods that form the very base of the marine food web and,
`in turn, starve forage fish such as herring and the species that prey upon them. These shifts lead to
`reduced food availability for salmonids that, in turn, affect larger marine life such as the
`endangered Southern Resident killer whale.
`5.
`Ecology has continued to issue and reissue permits to sewage treatment plants
`discharging to Puget Sound and its tributaries, none of which includes nutrient effluent limits
`sufficient to protect Puget Sound.
`6.
`Ecology has continued to issue and reissue permits to sewage treatment plants
`discharging to Puget Sound and its tributaries, almost none of which includes effluent limits for
`toxic pollutants and none of which includes effluent limits for a class of pollutants including but
`not limited to pharmaceuticals, industrial and food additives, some pesticides, plasticizers, flame
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` COMPLAINT
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`2
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 3 of 56
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`retardants, and personal care products referred to as “contaminants of emerging concern.” Yet, in
`2010, Ecology and EPA issued a report showing that there is a high potential for removal of such
`toxics when nutrient removal technology is installed at sewage treatment plants.
`7.
`Beyond sewage treatment plants, Ecology has no program or plan to reduce the
`input of pollution from nonpoint sources, such as stormwater and polluted runoff from farming
`and logging, to Puget Sound and its tributaries despite its having found that such sources are
`significant contributors to nitrogen levels in Puget Sound.
`8.
`Despite having worked for many years to develop the technical basis of Total
`Maximum Daily Loads (“TMDL”) pursuant to the requirements of CWA section 303(d) to
`address nitrogen in Puget Sound, Ecology has instead decided to issue a “TMDL Alternative,” an
`action that EPA has approved in at least one document entitled “Environmental Performance
`Partnership Agreement, State Fiscal Years 2020-2021 July 1, 2019 to June 30, 2021.”
`9.
`The planned issuance of a “TMDL Alternative” in lieu of the required TMDLs
`means that Ecology and EPA will not take regulatory actions necessary to comply with the CWA
`and restore water quality of Puget Sound to water quality standards.
`10.
`In doing so, EPA has violated its mandatory duty under CWA section 303(d), 33
`U.S.C. § 1313(d)(2), to develop TMDLs for Puget Sound. Additionally, EPA’s decision to
`approve Ecology’s “TMDL Alternative” in the Performance Partnership Agreement (“PPA”) was
`arbitrary, capricious, and contrary to the CWA, within the meaning of the APA, 5 U.S.C. § 706.
`JURISDICTION AND VENUE
`11.
`This Court has jurisdiction pursuant to the judicial review provision of the
`Administrative Procedure Act, 5 U.S.C. § 702, as well as the federal question statute, 28 U.S.C. §
`1331.
`
`12.
`On June 4, 2021, NWEA sent EPA the required notice of intent to sue, pursuant to
`33 U.S.C. § 1365(b)(1)(A). That notice of intent to sue is attached hereto as Exhibit 1.
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` COMPLAINT
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`3
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 4 of 56
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`13.
`Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(e) because a
`substantial part of the events or omissions giving rise to the claims occurred in Seattle,
`Washington, where EPA’s Region 10 administrative office is located.
`PARTIES
`14.
`The plaintiff in this action is NORTHWEST ENVIRONMENTAL
`ADVOCATES. Established in 1969, NWEA is a regional non-profit environmental organization
`incorporated under the laws of Oregon in 1981 and organized under section 501(c)(3) of the
`Internal Revenue Code. NWEA’s principal place of business is in Portland, Oregon. NWEA’s
`mission is to work through advocacy and education to protect and restore water and air quality,
`wetlands, and wildlife habitat in the Northwest, including Washington. NWEA employs advocacy
`with administrative agencies, community organizing, strategic partnerships, public record
`requests, information sharing, lobbying, education, expert review, and litigation to ensure better
`implementation of the laws that protect and restore the natural environment. NWEA has
`participated in the development of CWA programs to control both point and nonpoint sources in
`the State of Washington for many years, including the state’s TMDL program by, inter alia,
`having brought suit in 1991 against EPA for its failure to establish TMDLs for the State of
`Washington and again in 2019; having brought suit against EPA for not acting on TMDLs for the
`Deschutes River basin and, later, for not replacing those TMDLs it subsequently disapproved, and
`not completing TMDLs for Budd Inlet and Capitol Lake; and serving on EPA’s TMDL federal
`advisory committee from 1996 to 1998.
`15.
`NWEA’s members regularly use and enjoy the waters and adjacent lands of Puget
`Sound. NWEA’s members have definite future plans to continue using them for recreational,
`scientific, aesthetic, spiritual, conservation, educational, employment, and other purposes. Many
`of these interests revolve around viewing sensitive salmonid species, the endangered Southern
`Resident killer whales, and other aquatic and aquatic-dependent species that are under threat by
`pollution in the waters at issue in this lawsuit. The use and enjoyment that NWEA’s members
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` COMPLAINT
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`4
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 5 of 56
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`derive from viewing these species, and otherwise recreating on or near and enjoying the waters of
`Puget Sound and its tributaries, is diminished by the effects of pollution, including specifically
`nitrogen and toxic pollution. NWEA’s members would derive more benefits and enjoyment from
`their use of these waters if these pollutants were not adversely affecting water quality and aquatic
`and aquatic-dependent species in these waters.
`16.
`Some of NWEA’s members derive or used to derive recreational and aesthetic
`benefits by fishing and shellfish gathering in Puget Sound, its embayments and tributaries. These
`members have curtailed their fishing and shellfish gathering in the Sound and its tributaries, or no
`longer fish and gather shellfish in the Sound, due in part to concerns regarding pollutants and their
`effect on fisheries. Successful completion of TMDLs to address these pollution problems in Puget
`Sound and its tributaries is a critical step in fully implementing the goals of the CWA for these
`waters, fully protecting salmonids, orcas, other aquatic and aquatic-dependent species, and
`improving water quality. EPA’s failure to establish TMDLs for the waterbodies at issue in this
`lawsuit, along with EPA’s approval of Ecology’s “TMDL Alternative,” puts these species at risk
`and threatens or negatively affects the interests of NWEA’s members.
`17.
`The recreational, aesthetic, conservation, employment, scientific, and other
`interests of NWEA and its members have been, are being, and unless relief is granted, will
`continue to be adversely affected and irreparably injured by EPA’s failure to comply with the
`CWA.
`
`18.
`Defendant U.S. ENVIRONMENTAL PROTECTION AGENCY is the federal
`agency charged with the administration of the CWA, and specifically with approving or
`disapproving state identification of impaired waters and state TMDL submissions under section
`303(d)(2) of the CWA, 33 U.S.C. § 1313(d)(2).
`/// /// ///
`/// /// ///
`/// /// ///
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` COMPLAINT
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`5
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
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`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 6 of 56
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`LEGAL BACKGROUND
`
`The Clean Water Act and Water Quality Standards that Establish Water Quality-Based
`Pollution Controls
`19.
`Congress adopted amendments to the CWA in 1972 in an effort “to restore and
`maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. §
`1251(a). While the primary goal of the CWA is to eliminate the discharge of pollutants into
`navigable waters entirely, Congress established “an interim goal of water quality which provides
`for the protection and propagation of fish, shellfish, and wildlife.” Id. § 1251(a)(1)–(2).
`20.
`To meet these statutory goals, the CWA requires states to develop water quality
`standards that establish, and then protect, the desired conditions of each waterway within the
`state’s regulatory jurisdiction. 33 U.S.C. § 1313(a). Water quality standards must be sufficient to
`“protect the public health or welfare, enhance the quality of water, and serve the purposes of [the
`CWA].” Id. § 1313(c)(2)(A). Water quality standards establish the water quality goals for a
`waterbody. 40 C.F.R. §§ 131.2, 131.10(d). EPA is charged with approving or disapproving a
`state’s water quality standards or, in some instances, establishing standards for a state. See 33
`U.S.C. § 1313(c).
`21. Water quality standards are comprised of designated uses, numeric and narrative
`criteria to protect the designated uses, and an antidegradation policy that ensures that beneficial
`uses dating to 1975 are protected and high-quality waters will be maintained and protected. 33
`U.S.C. §§ 1313(c)(2), (d)(4)(B); 40 C.F.R. Part 131, Subpart B. Overall, water quality standards
`establish the water quality goals for a waterbody. 40 C.F.R. §§ 131.2, 131.10(d).
`22.
`States must designate uses based on consideration of the use and value of a
`waterbody for public water supplies, protection and propagation of fish, shellfish, and wildlife,
`recreation, and agricultural, industrial, and other purposes. 40 C.F.R. § 131.10(a).
`23. Water quality criteria must be set at a level necessary to protect the designated
`uses of a waterbody. 33 U.S.C.§ 1313(c)(2); 33 U.S.C.§ 1313(d)(4)(B); 40 C.F.R. Part 131,
`Subpart B. Criteria “must be based on sound scientific rationale and must contain sufficient
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` COMPLAINT
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`6
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 7 of 56
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`parameters or constituents to protect the designated use.” 40 C.F.R. § 131.11(a)(1). The criteria
`must also be set at the level necessary to protect the most sensitive use of a waterbody. Id.
`24.
`States may also establish narrative water quality criteria “to supplement numerical
`criteria.” 40 C.F.R. § 131.11(b)(2).
`25.
`The third component of water quality standards, the antidegradation policy, stems
`from the CWA’s dictate to “restore and maintain the chemical, physical, and biological integrity
`of the Nation’s waters.” 33 U.S.C. § 1251(a). The antidegradation policy must assure that water
`quality that meets or exceeds water quality standards is maintained and that no further
`degradation is allowed for waters that do not meet water quality standards. 40 C.F.R. § 131.12.
`States must also develop antidegradation policy implementation methods. Id.
`26.
`Among other things, water quality standards serve as the regulatory basis for
`establishing water quality-based controls for so-called point sources of pollution, as required by
`sections 301 and 306 of the CWA, 33 U.S.C. §§ 1311 & 1316. Point source discharges are
`regulated under National Pollutant Discharge Elimination System (“NPDES”) permits, which
`must contain limitations “necessary to meet water quality standards.” 33 U.S.C. §§
`1311(b)(1)(C), 1342(a). Water quality standards are thus integral to the regulation of point source
`pollution.
`27. Water quality standards also are used to establish measures to control nonpoint
`sources pollution. Unlike point source pollution, nonpoint source pollution is generally considered
`to be any pollution that cannot be traced to a single discrete conveyance. Examples include runoff
`from agricultural or forestry lands and increased solar radiation caused by the loss of riparian
`vegetation. Congress did not establish a federal permitting scheme for nonpoint sources of
`pollution, such as pollution from timber harvesting and agriculture. Instead, Congress assigned
`states the task of implementing water quality standards for nonpoint sources, with oversight,
`guidance, and funding from EPA. See, e.g., 33 U.S.C. §§ 1288, 1313, 1329. Even so, water
`quality standards apply to all pollution sources, point and nonpoint alike.
`
`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
` COMPLAINT
`
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`7
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`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 8 of 56
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`List of Impaired Waters: Every Two Years the State Must Identify Waters that Are Not
`Meeting the Water Quality Standards
`28.
`CWA section 303(d)(2) requires states to “submit to the Administrator from time
`to time” a list of “waters identified and loads established under” subsections 303(d)(1)(A)–(D),
`including, among other components, a list of waters for which technology-based effluent
`limitations “are not stringent enough to implement any water quality standard applicable to such
`waters.” 33 U.S.C. § 1313(d)(2); see also 40 C.F.R. §§ 130.7(b); 130.10(b), (d).
`29.
`Such waters are called “water quality limited” or “impaired” waters. 40 C.F.R. §
`131.3(h) (“Water quality limited segment means any segment where it is known that water quality
`does not meet applicable water quality standards, and/or is not expected to meet applicable water
`quality standards.”) (emphasis in original).
`30.
`EPA has promulgated rules that establish the frequency of such submissions,
`consistent with the statute. Every two years states must compile their list of impaired waters and
`submit them to EPA for approval. 33 U.S.C. § 1313(d)(1)(A), (d)(2). These lists are commonly
`called “303(d) lists” in reference to section 303(d) of the CWA, 33 U.S.C. § 1313(d).
`31.
`The 303(d) lists serve several important functions, in addition to identifying
`which waterbodies must receive the required TMDL clean-up plans. The list provides the public
`and local governments with specific information about the health of the waterbodies throughout
`the state and identifies which waterbodies may not be safe to use. The list identifies where
`improved nonpoint source controls of polluted runoff from land activities, such as farming and
`logging, are needed, as well as priorities for habitat restoration. Finally, when a waterbody is
`listed as water quality limited, additional protections are triggered under the CWA’s NPDES
`permitting requirements to ensure impaired waters are not further degraded. See 40 C.F.R. §§
`122.4, 122.44.
`32.
`For purposes of listing impaired waters, the applicable water quality standards
`include waters’ designated uses, numeric criteria, narrative criteria, and antidegradation
`requirements. 40 C.F.R. § 130.7(b)(3).
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

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`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 9 of 56
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`33.
`In order to identify water quality-limited segments, each state, at a minimum,
`must “assemble and evaluate all existing and readily available water quality-related data and
`information” for certain categories of waters that include, but are not limited to, “those for which
`water quality problems have been reported by local, state, or federal agencies; members of the
`public; or academic institutions.” 40 C.F.R. § 130.7(b)(5), (b)(5)(iii).
`34.
`“The Regional Administrator shall approve a list developed under § 130.7(b) . . .
`only if it meets the requirements of § 130.7(b).” 40 C.F.R § 130.7(d)(2).
`35.
`A state must submit an updated impaired waters list to EPA on April 1 of every
`even-numbered year. 40 C.F.R. § 130.7(d)(1). States submit these lists to EPA for approval or
`disapproval. 33 U.S.C. § 1313(d)(2). EPA must act on the list within 30 days; if it disapproves the
`list, EPA must establish a replacement list within 30 days of the disapproval. 33 U.S.C. §
`1313(d)(2).
`
`
`Total Maximum Daily Loads: The States Must Develop Clean-Up Plans to Ensure
`Pollution Levels Are Reduced to Meet Water Quality Standards
`
`36.
`For each of their 303(d)-listed impaired waters, states must establish a “total
`maximum daily load” (“TMDL”) of pollutants “at a level necessary to implement the applicable
`water quality standards[.]” 33 U.S.C. § 1313(d)(1)(C). To encourage prompt state action even
`where water quality data are imperfect, the Act requires that TMDLs include a “margin of safety
`which takes into account any lack of knowledge concerning the relationship between effluent
`limitations and water quality.” Id.
`37.
`States are required to “establish a priority ranking” for their 303(d)-listed
`impaired waters, “taking into account the severity of the pollution and the uses to be made of such
`waters.” 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b)(4). States “shall establish” TMDLs “in
`accordance with the priority ranking.” 33 U.S.C. § 1313(d)(1)(C). “Schedules for submission of
`TMDLs shall be determined by the Regional Administrator and the State.” 40 C.F.R. §
`130.7(d)(1).
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` COMPLAINT
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

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`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 10 of 56
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`38.
`A TMDL is the total daily loading of a pollutant for a particular waterbody or
`segment. See 40 C.F.R. §130.2(i). The total amount of a pollutant that may enter a waterbody
`while ensuring the waterbody is still meeting water quality standards is called its “loading
`capacity.” 40 C.F.R. § 130.2(f). TMDLs for individual waterbodies or segments are often bundled
`together by watershed or subbasin in the same analytical document.
`39.
`After calculating a waterbody’s loading capacity, a TMDL then distributes
`portions of the total loading capacity to individual sources or categories of pollution sources, like
`dividing up a pie. These allocations include both “load allocations” for nonpoint sources and
`“wasteload allocations” for point sources of pollution. 40 C.F.R. § 130.2(i). The purpose of load
`and wasteload allocations is to allocate the total amount of pollution that may enter a waterbody
`between all the sources of pollution, including both point and nonpoint sources, thereby
`restricting pollution inputs sufficiently to attain and maintain water quality standards. 40 C.F.R. §
`130.7(c).
`40.
`A TMDL is the CWA mechanism designed to ensure that assumptions about
`nonpoint source load reductions that “make more stringent load allocations practicable, then
`wasteload allocations can be made less stringent.” 40 C.F.R. § 130.2(i). In this way, “the TMDL
`process provides for nonpoint source control tradeoffs.” Id. Without “reasonable assurance” that
`nonpoint source controls will be implemented, TMDLs must require maximum pollution controls
`from NPDES permitted sources.
`41.
`As with water quality standards and impaired waters lists, states must submit
`TMDLs to EPA for approval or disapproval. 33 U.S.C. § 1313(d)(2); 40 C.F.R. § 130.2(d). EPA
`must act on the TMDL submission within 30 days, and if it disapproves the TMDL, EPA must
`establish a replacement TMDL within 30 days of the disapproval. 33 U.S.C. § 1313(d)(2); 40
`C.F.R. § 130.7(d)(2) (“If the Regional Administrator disapproves such listings and loadings, he
`shall, not later than 30 days after the date of such disapproval, identify such waters in such State
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`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
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`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 11 of 56
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`and establish such loads for such waters as determined necessary to implement applicable [water
`quality standards].”).
`42.
`Subsequent to EPA approval of TMDLs, the permitting authority for a state must
`ensure that “[e]ffluent limits developed to protect a narrative water quality criterion, a numeric
`water quality criterion, or both, are consistent with the assumptions and requirements of any
`available wasteload allocations for the discharge prepared by the State and approved by EPA
`pursuant to 40 CFR 130.7.” 40 C.F.R. § 122.44(d)(1)(vii)(B). The approved load allocations serve
`as the basis for state and local programs for controlling nonpoint source pollution, including state
`programs that receive federal funds under CWA section 319, 33 U.S.C. § 1329. Once EPA
`approves a TMDL, the state must also incorporate the TMDL into its “continuing planning
`process” under CWA section 303(e), 33 U.S.C. § 1313(e)(3)(C).
`43.
`In guidance published more than 20 years ago, EPA recognized that it “needs an
`overall plan for completing and approving TMDLs for all listed waters” and that each EPA
`Region should “secure a specific written agreement with each State in the Region establishing an
`appropriate schedule for the establishment of TMDLs for all waters on the most recent section
`303(d) list,” with those schedules being “expeditious” and extending “from eight to thirteen years
`in length.” Memorandum from Robert Perciasepe, Assistant Administrator, EPA Office of Water,
`to Regional Administrators and Regional Water Division Directors: New Policies for Establishing
`and Implementing Total Maximum Daily Loads (TMDLs) (1997) at 3.1
`44.
`Thus, as this Court itself has noted, section 303(d) of the CWA “expressly
`requires the EPA to step into the states’ shoes if their TMDL submissions . . . are inadequate.”
`Alaska Center for the Envt. v. Reilly, 762 F. Supp. 1422, 1429 (W.D. Wa. 1993). Further,
`because “Congress prescribed early deadlines for the TMDL process,” appropriate TMDL
`schedules must be counted in “months and a few years, not decades.” Idaho Sportsmen’s
`Coalition v. Browner, 951 F. Supp. 962, 967 (W.D. Wa. 1996).
`
`1 Available at https://www.epa.gov/sites/default/files/2015-10/documents/2003_10_21_tmdl_
`ratepace1997guid_0.pdf (last visited December 3, 2021).
` COMPLAINT
`11
`Western Environmental Law Center
`
`
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`
`
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`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 12 of 56
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`Congress intended for TMDLs to be developed promptly, without undue delay. 33
`38.
`U.S.C. § 1313(d). To that end, the Ninth Circuit, along with other courts, has adopted—and
`recently reaffirmed—the “constructive submission” doctrine. Pursuant to this doctrine, a clear
`and unambiguous decision by a state to not submit TMDLs to EPA will be construed as the
`constructive submission of no TMDLs, “which in turn triggers EPA’s nondiscretionary duty to
`act” under CWA section 303(d)(2) by preparing its own TMDLs instead. Columbia Riverkeeper
`v. Wheeler, 944 F.3d 1204, 1208 (9th Cir. 2019).
`Performance Partnership Grants and Performance Partnership Agreements
`39.
`States may apply for Performance Partnership Grants (“PPG”) from EPA. 40
`C.F.R. §§ 35.101(a)(3), 35.130. The PPG application process requires a Work Plan, which is the
`product of negotiations between the applicant state and the EPA Regional Administrator. Id. §
`35.107(a). PPG Work Plans “must be consistent with applicable federal statutes; regulations;
`circulars; executive orders; and EPA delegations, approvals, or authorizations.” Id. §
`35.107(b)(3); see also id. § 35.111(a)(2). Performance Partnership Agreements (“PPA”) may be
`used as work plans for PPGs. Id. §§ 35.102, 35.107(c).
`40.
`PPAs are defined as “[a] negotiated agreement signed by the EPA Regional
`Administrator and an appropriate official of a State agency and designated as a Performance
`Partnership Agreement. Such agreements typically set out jointly developed goals, objectives,
`and priorities; the strategies to be used in meeting them; the roles and responsibilities of the State
`and EPA; and the measures to be used in assessing progress.” 40 C.F.R. § 35.102.
`41.
`The EPA Regional Administrator and the state jointly develop an evaluation of
`progress made on the Work Plan, no less than annually. 40 C.F.R. § 35.115. Reports must
`include specified elements, id. § 35.115(b), and the Regional Administrator is required to ensure
`that they are completed, id. § 35.115(d). The Regional Administrator is responsible for
`negotiating resolution of insufficient progress under the Work Plan and for taking appropriate
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` COMPLAINT
`
`
`
`
`12
`
`
`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 13 of 56
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`measures under 2 C.F.R. § 200.338 that include withholding of payments, denying use of funds,
`terminating the award, and taking other actions that are legally available. 40 C.F.R. § 35.115(d).
`Judicial Review under the Clean Water Act’s Citizen Suit Provision
`42.
`The CWA authorizes citizen suits against the EPA Administrator “where there is
`alleged a failure of the Administrator to perform any act or duty under this chapter which is not
`discretionary with the Administrator.” 33 U.S.C. § 1365(a)(2).
`43.
`The district courts have jurisdiction over suits against the Administrator arising
`under the citizen suit provision and may “order the Administrator to perform such act or duty”
`the non-performance of which is the basis for the claim. 33 U.S.C. § 1365(a). Regulations
`promulgated by EPA to implement the CWA may establish for the agency a nondiscretionary
`duty the failure to undertake of which is subject to review under the citizen suit provision of the
`CWA where the duty is clear-cut and readily ascertainable from the regulatory language.
`Judicial Review under the Administrative Procedure Act
`44.
`Section 702 of the Administrative Procedure Act (“APA”) provides a private
`cause of action to any person “suffering legal wrong because of agency action, or adversely
`affected or aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702.
`45.
`Only final agency actions are reviewable under the APA. 5 U.S.C. § 704. Agency
`action includes a “failure to act.” Id. § 551(13). Under the APA, a court must “hold unlawful
`and set aside agency actions, findings, and conclusions found to be . . . arbitrary, capricious, an
`abuse of discretion, or otherwise not in accordance with law;” “in excess of statutory jurisdiction,
`authority, or limitations, or short of statutory right;” or “without observance of procedure
`required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
`/// /// ///
`/// /// ///
`/// /// ///
`/// /// ///
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` COMPLAINT
`
`
`13
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`
`
`Western Environmental Law Center
`1402 3rd Ave, Suite 1022
`Seattle, WA 98101
`206-487-7250
`
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland, OR 97219
`503-768-6894
`
`

`

`Case 2:21-cv-01637 Document 1 Filed 12/07/21 Page 14 of 56
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`FACTUAL BACKGROUND
`
`Washington’s Water Quality Standards
`
`
`
`Designated Uses
`46. Washington has established several categories of designated uses for fresh water,
`such as “aquatic life uses,” which include “all indigenous fish and nonfish aquatic species”
`including but not limited to char (bull trout and Dolly Varden), salmonids (salmon and
`steelhead), non-anadromous i