LOIS J. SCHIFFER

Assistant Attorney General

NORMAN L. RAVE, JR.

S. RANDALL HUMM

Trial Attorneys

Environment & Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Telephone: (202) 616-7568

ROBERT S. MUELLER, III (SBN 59775)

United States Attorney

CHARLES M. O’CONNOR (SBN 56320

Assistant United States Attorney

Chief, Environment & Natural Resources Unit

450 Golden Gate Avenue - P.O. Box 36055

San Francisco, California 94102

Telephone: (415) 436-7180

Attorneys for Defendants Carol Browner, et al.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

______________________________________

)

SAN FRANCISCO BAYKEEPER, et al., ) C-00-0132 CAL

Plaintiffs, ) C-00-0424 CAL

v. )

CAROL BROWNER, et al. ) BRIEF OF DEFENDANTS

Defendants ) IN OPPOSITION TO

) BAYKEEPER’S MOTION FOR

) SUMMARY JUDGMENT AND IN

) SUPPORT OF DEFENDANTS’

) CROSS-MOTION FOR SUMMARY

) JUDGMENT

CALIFORNIA ASSOCIATION OF )

SANITATION AGENCIES, et al. )

Plaintiffs ) Motion Date: June 30, 2000

v. ) Time: 9:30 AM

CAROL BROWNER, et al. )

Defendants )

______________________________________ ) Courtroom: 10

In this action, plaintiffs San Francisco Baykeeper, et al. (collectively "Baykeeper") seek an order from the Court compelling defendants Carol Browner, et al. (collectively "EPA") to establish total maximum daily loads ("TMDLs") for over 400 waterbodies in the State of California. Baykeeper bases its claim on the contention that California has "constructively submitted" to EPA a determination that the state will submit no TMDLs for its waters. This contention is contrary to the facts and relevant case law. California has submitted over 20 TMDLs to EPA, is currently in the process of developing another 200 TMDLs and has scheduled completion of virtually all required TMDLs by 2011. Thus, there is no basis on which the Court could find that California has made a "constructive submission" of "no TMDLs" triggering a duty by EPA to establish the TMDLs. Nor is there any basis for Baykeeper’s claims under the Administrative Procedure Act ("APA"). Accordingly, Baykeeper’s motion for summary judgment should be denied.

This case involves the interpretation of section 303(d) of the Clean Water Act, 33 U.S.C. § 1313(d). The CWA seeks to control water pollution by means of two different overarching strategies: ambient water quality standards adopted by the states and technology-based regulations promulgated by EPA. Until 1972, federal water quality legislation relied primarily on the water quality standards approach, under which the states, subject to federal approval, set water quality standards for interstate waters. However, it proved very difficult to translate ambient standards into "standards to govern the conduct of individual polluters." EPA v. California, 426 U.S. 200, 205 (1976); Save the Bay, Inc. v. Administrator, 556 F.2d 1282, 1284-1285 (5th Cir. 1977). As one aspect of the new CWA permit regime, EPA was authorized to establish technology-based regulations that reflect increasingly stringent levels of pollution control technology to be achieved by point sources. Id. 1311(b)(1)(A),(B), (b)(2); see generally E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (1977).

The 1972 amendments, however, also preserved an important role for water quality standards. Subsections 303(a) through (c) direct the states, with federal approval and oversight, to adopt and maintain water quality standards for intra- as well as interstate waters. 33 U.S.C. 1313(a)-(c). States must designate the use or uses for which each water is to be protected (e.g., recreation or propagation of fish) and determine the level of water quality necessary to support the designated uses. See generally id. 1313(c)(2)(A); 40 C.F.R. pt. 131 (1998). Point source discharges must not only comply with the technology-based regulations, but also with any more stringent effluent limitations necessary to meet water quality standards. 33 U.S.C. 1311(b)(1)(C).

The National Pollutant Discharge Elimination System (NPDES) permit program under Section 402 of the CWA is the principal means for implementing both technology-based regulations and water quality standards. Id. 1342(a)(1), 1311(b)(1)(C); 40 C.F.R.  122.44(a), (d)(1). An NPDES permit transforms the generally applicable technology-based regulations and state water quality standards into specific limits applicable to the individual discharger. Forty-three states, including California, are authorized to administer the NPDES permit program. In the remaining states, the permits are issued by EPA. See 33 U.S.C. 1342(a).

The 1972 amendments introduced total maximum daily loads ("TMDLs") as a mechanism to aid in the achievement of state water quality standards. See 33 U.S.C. 1313(d)(1), (2). Each state must identify and list those waters within its boundaries for which technology-based regulations and other required controls are not stringent enough to achieve the applicable water quality standards. See 33 U.S.C. 1313(d)(1); 40 C.F.R. 130.7(b)(1). Such waters are known as "water quality limited segments" ("WQLSs"). See 40 C.F.R. 130.2(j). Each state must establish a priority ranking of WQLSs, taking into account the severity of pollution and the uses to be made of those waters. 33 U.S.C. 1313(d)(1)(A); 40 C.F.R. 130.7(b)(4). This ranked list is called the "303(d) list."

States are required to establish TMDLs for each WQLS on the 303(d) list in accordance with the priority ranking. 33 U.S.C. 1313(d)(1)(C); 40 C.F.R. 130.7(c)(1)(i), (ii). TMDLs set the quantity of a pollutant that may be introduced into a receiving water without exceeding applicable water quality standards, taking into account seasonal variations and an adequate margin of safety. 33 U.S.C. 1313(d)(1)(C). In its 1985 implementing regulations, EPA defined a TMDL for a pollutant, e.g., sediment, as the sum of the "wasteload allocations" (WLAs) assigned to point sources, the "load allocations"assigned to nonpoint sources or "natural background," and the margin of safety. 40 C.F.R. 130.2(i). A nonpoint source is any non-discrete source, such as runoff from agriculture. See, e.g., Trustees for Alaska v. EPA, 749 F.2d 549, 558 (9th Cir. 1984). While point sources are controlled directly by the CWA’s NPDES program, direct control of nonpoint source pollution is left to state programs developed under state law. See 33 U.S.C. 1329. Calculations to establish TMDLs are subject to public review. 40 C.F.R.  130.7(c)(1)(ii).

The CWA required states to submit their initial 303(d) lists and TMDLs to EPA within 180 days of EPA’s identification of pollutants suitable for TMDL calculations. 33 U.S.C. 1313(d)(2). EPA issued its identification on December 28, 1978, making the initial state submissions due on June 26, 1979. See 43 Fed. Reg. 60,662 (Dec. 28, 1978). After the initial submission, states must submit additional 303(d) lists and TMDLs to EPA for review and approval "from time to time." 33 U.S.C. 1313(d)(2); see also 40 C.F.R. 130.7(d)(1).

EPA must approve or disapprove state-submitted 303(d) lists and TMDLs within 30 days of their submission. 33 U.S.C. 1313(d)(2). If EPA disapproves a 303(d) list, it must identify the WQLSs that should be on the list within 30 days from the date of disapproval. Id. Similarly, if EPA disapproves a state TMDL, EPA must issue its own TMDL within 30 days. Id.

C. The Evolution Of The TMDL Program

During the 1970s and 1980s, EPA and the states gave priority to developing the new technology-based regulations, which EPA and states implemented through the new NPDES permit program. Neither EPA nor the states emphasized the development of TMDLs under Section 303(d). This initial focus was in keeping with Congress’s expectations. Because of the magnitude of the task of water pollution control nationally and the relative paucity of resources, Congress recognized that EPA and the states could not give equal attention to all CWA programs simultaneously. Consequently, Congress expected that EPA and the states would give first priority to implementing technology-based controls through the NPDES permitting program, and would focus on implementing water quality standards programs to the extent consistent with that primary goal./

In the early 1990s, EPA began to focus the states’ attention on the TMDL requirements of the CWA, particularly as they relate to nonpoint sources. Among other initiatives, EPA issued TMDL guidance in 1991./ In 1992, EPA amended its TMDL regulations to require states to submit 303(d) lists every two years. 57 Fed. Reg. 33,040, 33,043 (July 24, 1992) (codified at 40 C.F.R. 130.7(d)(1)).

In 1996, EPA convened a Federal Advisory Committee to make recommendations for improving the TMDL program. The committee, comprised of representatives of diverse viewpoints, including states and environmentalists, arrived at numerous consensus recommendations that EPA has used to develop proposed revisions to its TMDL regulations. See generally 64 Fed. Reg. 46,012 and 64 Fed. Reg. 46,058 (Aug. 23, 1999) . The committee endorsed EPA’s guidance, issued in 1997, urging states to set schedules for establishing TMDLs for all waters on their 1998 and later 303(d) lists. 64 Fed. Reg. at 46,027. EPA recommended ambitious schedules ranging from eight to thirteen years, but recognized that individual state circumstances could call for either shorter or longer schedules. Id.

FACTUAL BACKGROUND/

EPA recently completed a comprehensive review of California’s implementation of section 303(d) of the CWA. U.S. EPA, California TMDL Program Review (May 4, 2000) (Att. 2) ("Prog. Rev."). This review demonstrated that California has an active program for implementing the requirements of section 303(d), and that while the State began implementing these requirements more than 25 years ago, since 1997, the State has significantly increased the level of resources committed to the program. California has submitted 303(d) lists of WQLS on a regular basis since 1975./ Prog. Rev. at 5-7. The State’s most recent list, as amended by EPA, identifies over 500 WQLS, of which more than 200 were initially identified in the 1996 and 1998 lists. EPA has approved more than 20 TMDLs that have been established by the State of California./ Prog. Rev. at 3-4. In addition, 11 TMDLs have been established by EPA based on technical work performed by the State./ California has also developed several hundred water quality-based NPDES permits, which implement the goals of section 303(d) by imposing stringent effluent limitations on point sources beyond those mandated by technology-based standards, in order to achieve water quality standards. Id. at 2. There are currently 200 TMDLs under development by California, and the State has developed a comprehensive schedule calling for the establishment of TMDLs for virtually all WQLS on the State’s 1998 303(d) list in the next eleven years. Id. at 9-11. California’s current budget for TMDL development is approximately $7 million/year. In addition, EPA Region 9 is currently devoting $1 million/year in staff and contractor time to support implementation of section 303(d) in California. Id. at 3.

From 1975 through 1986, California administered section 303(d) through the process of developing and revising the state’s basin plans, in accordance with EPA’s then existing regulations. Prog. Rev. at 44-47. In these basin plans, initially adopted in 1975 and 1976, the State identified WQLS and developed necessary effluent limitations for point sources discharging into those waters to be implemented through the NPDES permit program. EPA reviewed and approved those basin plans, both upon their initial adoption and during triennial reviews. EPA determined that the identification of effluent limitations and other pollutant controls in the basin plans constituted waste load allocations for the point sources on waterbodies where water quality standards were not being met, as then required under EPA’s regulations implementing section 303(d). Accordingly, EPA reviewed and approved these allocations as TMDLs. See Sierra Club v. Browner, 843 F. Supp. 1304, 1313-14 (D. Minn. 1993) (wasteload allocations can be TMDLs). These basin plans, which continued to address WQLS through such effluent limitations, were regularly updated and reviewed by EPA through 1986.

After 1986, in response to a change in EPA’s regulations, California began submitting TMDLs to EPA as separate documents. No TMDLs were submitted between 1987 and 1993, at least in part because both EPA and the State devoted substantial resources during that time to the development of the lists and Individual Control Strategies required by CWA section 304(l), 33 U.S.C. § 1314(l), which addresses toxic water pollutants. Since 1993, California has submitted to EPA, and EPA has approved, 19 TMDLs. Prog. Rev. at 4. Specifically, in 1994 California established a TMDL for total nitrogen in Reach 3 of the Santa Ana River, in 1995 California established TMDLs for ammonia and dissolved oxygen for Laguna de Santa Rosa, in 1999 California established TMDLs for selenium in Salt Slough, for sediment, nitrogen, and phosphorus in Upper and Lower Newport Bay, and for sediment, nitrogen, and phosphorus in reaches 1 and 2 of San Diego Creek, and thus far in 2000, California has established TMDLs for fecal coliform in Upper and Lower Newport Bay. Id. Since the Program Review was conducted EPA approved a TMDL for selenium in the Grasslands Marshes on May 26, 2000. For each of these TMDLs the State also adopted an implementation plan, which is not a required element of a TMDL under EPA’s current regulations. 64 Fed. Reg. 46,012, 46,030 (Aug. 23, 1999). In addition, EPA has established TMDLs for sediment in the Garcia River (in 1997) and in the Noyo River (in 1999) based on draft TMDLs prepared by the State. Id./

California in partnership with EPA is actively pursing a strategy for the establishment of TMDLs for all WQLS in the State by 2011. Over 200 TMDLs are currently under development by the State, including waters in each of California’s nine Water Quality Regions, which represents more than 14 percent of the required TMDLs. Prog. Rev. at 11. The State has submitted 33 draft TMDLs to EPA for review. Prog. Rev. at 22. California has committed substantial resources to this effort, with a current budget commitment of $7 million dollars annually ($4 million of State money and $3 million in federal grants) to develop TMDLs. Id. at 24. In addition, EPA has committed $1 million annually for EPA support of TMDL development in California. The State has developed a comprehensive schedule for the completion of TMDLs for virtually all the waters on the State’s 1998 303(d) List by the year 2011. Prog. Rev. at 10.

Moreover, the TMDL program in California is currently subject to three consent decrees, each of which establishes a schedule for the establishment of TMDLs for specified waters in the State. Pursuant to these consent decrees, EPA is obligated to establish TMDLs if California does not establish TMDLs pursuant to the schedules. Heal the Bay, Inc. v. Browner, No. C-98-4825 SBA (C.D. Cal. 1999); Defend the Bay, Inc. v. Marcus, No. C-96-2591 DLJ (N.D. Cal. 1997); Pacific Coast Federation of Fisherman’s Ass’ns v. Marcus, No. C-95-4474 MHP (N.D. Cal. 1997). Together, these decrees cover approximately one-half of the WQLS in the State./

Summary judgment is appropriate if the moving party demonstrates "that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Where issues of statutory interpretation are raised, Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45 (1984), sets forth a two-step test for analyzing an agency’s interpretation of a statute that it administers. Under the first step of the Chevron analysis, the reviewing court must determine "whether Congress has directly spoken to the precise question at issue." Id. at 842. This inquiry focuses on the language of the provision "as well as the language and design of the statute as a whole." K Mart Corp. V. Cartier, Inc., 486 U.S. 281, 291 (1988). If Congress’ intent is clear from the statutory language, the inquiry ends. Chevron, 467 U.S. at 842-43.

If, however, the statute is silent or ambiguous with respect to the specific issue, the court moves to the second step of the Chevron analysis and decides whether the agency’s interpretation is based on a permissible construction of the statute. Id. at 843. To uphold EPA’s interpretation of Section 303(d), the court need not find that EPA’s interpretation is the only permissible construction that EPA might have adopted, or even the reading the court would have reached, but only that EPA’s interpretation is reasonable. Chevron, 467 U.S. 843, 844 n. 11; Chemical Mfrs. Ass’n v. NRDC, 470 U.S. 116, 125 (1985); Sierra Club v. EPA, 99 F.3d 1551, 1555 (10th Cir. 1996). When the interpretation involves reconciling conflicting policies committed by the statute to an agency’s expertise, deference is particularly appropriate. Chevron, 467 U.S. at 844-45. As explained by the Ninth Circuit, "[a] court should accept the ‘reasonable’ interpretation of a statute chosen by an administrative agency except when it is clearly contrary to the intent of Congress." Dioxin/Organochlorine Ctr. v. Clarke, 57 F.3d 15178, 1525 (9th Cir. 1995) (emphasis added).

CWA section 303(d) requires EPA to review for approval or disapproval TMDLs submitted by a state. 33 U.S.C. § 1313(d). If EPA disapproves the submitted TMDL, the Agency must establish the TMDL itself within 30 days. Id. In this litigation, Baykeeper is asserting that EPA has a mandatory duty under the CWA to establish TMDLs for all impaired waters in California on the theory that California has "constructively submitted" a determination that no TMDLs will be established. Baykeeper SJ Br. at 18. Because California has already established more than 20 TMDLs, is working on the establishment of 200 additional TMDLs, and has developed a reasonable schedule for the establishment of TMDLs for the WQLS on the State’s 1998 303(d) list, the constructive submission doctrine is inapplicable to California.

The "constructive submission" doctrine was first articulated by the Seventh Circuit in Scott v. City of Hammond, 741 F.2d 992 (7th Cir.1984), where the court held that a prolonged period of inaction by a state could be deemed a refusal to develop TMDLs or a determination that TMDLs were not necessary. See Alaska Ctr. for the Environment v. Reilly, 762 F. Supp. 1422, 1429 (W.D. Wash. 1991), aff’d, 20 F.3d 981 (9th Cir. 1994) ("ACE") ( "deliberate, silent inaction" by a state on TMDLs may trigger EPA’s duty to approve or disapprove a TMDL submission). In such circumstances, EPA must treat the state’s inferred refusal or determination not to submit TMDLs as a submission requiring the Agency’s approval or disapproval under section 303(d). If the Agency disapproves the "submission," EPA then becomes obliged to issue the TMDLs pursuant to Section 303(d)’s express requirement. 741 F.2d at 996-997.

Under Scott, EPA’s duty arises, however, only where the state in fact has "determined not to submit TMDL proposals." 741 F.2d at 997 n.11. EPA has no such mandatory duty when there is "persuasive evidence indicating that the states are, or will soon be, in the process of submitting TMDL proposals * * *." Id. Thus, if a state has developed TMDLs in the past, has a plan to establish TMDLs in the future, and there is no evidence the state has disengaged from its plan, there is no basis for concluding that a mandatory duty of EPA had been triggered. E.g., Natural Resources Defense Council, Inc. v. Fox, 93 F. Supp. 2d 531, 2000 WL 526696 *11 (S.D.N.Y. 2000) (Att. A) ("NRDC III")

Baykeeper itself admits that California has submitted a number of TMDLs to EPA for approval within the last six years. Baykeeper SJ Br. at 13, 16 n. 11. Although Baykeeper challenges EPA’s approval of two of these TMDLs, the fact that TMDLs were submitted to EPA refutes Baykeeper’s claim that the state has "determined not to submit TMDL proposals," Scott, 741 F.2d at 997 n. 11, or engaged in "deliberate, silent inaction," ACE, 762 F. Supp. at 1429. Further, Baykeeper understates the number of TMDLs that have been established by California by failing to consider TMDLs established through the Basin Planning process prior to 1987 and by lumping numerous TMDLs (i.e., individual waterbody/pollutant combinations) together as a single submission. As documented in EPA’s Program Review, to date California has established more than 20 TMDLs. Prog. Rev. at 4. Furthermore, the State has developed a schedule to establish TMDLs for virtually all waters on the State’s 1998 303(d) list/, has over 200 TMDLs currently in development, and has committed significant resources to the development of TMDLs. Id. at 2-3.

No inference that California has decided to do nothing or has determined that no TMDLs are necessary can be drawn from these facts. Thus, Baykeeper has failed to discharge its burden of proving a "constructive submission." See NRDC III, 2000 WL 526696 at * 11( where state had submitted some TMDLs and dedicated substantial resources to the program, determination of a "constructive submission" of "no TMDLs" not appropriate); Hayes v. Browner, 2000 WL 420656 (N.D. Okla. 2000) (Att. B) (no mandatory duty triggered where state had submitted biennial 303(d) lists and had submitted "at least three TMDLs" prior to the filing of the lawsuit); Friends of the Wild Swan, Inc. v. EPA, DV 97-35-M-MDWM (D. Mont. Nov. 5, 1999) (Att. C), slip op. 10-11 (mandatory duty not triggered where EPA has approved any TMDLs before the commencement of the lawsuit "even if the submissions are obviously inadequate"); Sierra Club v. Browner, 843 F. Supp. 1304, 1313-1314 (D. Minn. 1993) (mandatory duty not triggered where 43 TMDLs were submitted and approved).

II. BAYKEEPER’S APA CLAIM IS WITHOUT MERIT

In addition to its claim that EPA has violated a mandatory duty actionable under the CWA’s citizen suit provision, Baykeeper asserts that EPA’s failure to ensure the establishment of all TMDLs on a timely basis violates the APA, Baykeepr SJ Br. at 28. In essence, Baykeeper asserts under the APA that EPA’s determination that California has not constructively submitted a determination of no TMDLs is agency action unlawfully withheld or unreasonably delayed or is arbitrary and capricious. Baykeeper SJ Br. at 28-30. None of these claims has merit.

A. EPA Reasonably Exercised Its Discretion To Determine That California Has Not Constructively Submitted No TMDLs

EPA has comprehensively reviewed California’s TMDL program. Based on that review, EPA concluded that " California’s commitment to the TMDL program will succeed and should be given a chance to work." May 5, 2000 letter from Alexis Strauss to Edward Anton (Att. 4) at 2. Accordingly, the Agency has determined that "EPA need not establish total maximum daily loads ("TMDLs") in California at this time." Id. at 1. This determination is supported by California’s implementation of the TMDL program to date, the State’s schedule to implement the remaining TMDLs, and the commitment of resources to meeting that schedule. Prog. Rev. at 2-3.

EPA’s determination is reasonable. It is based first on California’s long-standing efforts to meet the requirements of section 303(d). As documented by Baykeeper, California has submitted lists of impaired waters to EPA on a regular basis since 1980./ Baykeeper SJ Br. at 6-12. That list has grown from 18 waters to 472, of which 187 were added in 1996 or 1998. Along with listing waters, the State has made a substantial effort to address identified water quality problems. From 1975 to 1986, the State adopted TMDLs and waste load allocations as part of its basin planning process, in accordance with the EPA regulations and guidance in place at the time. Prog. Rev. at 44-47. The State has also issued hundreds of NPDES permits containing water quality-based effluent limits, i.e., more stringent effluent limits needed to achieve water quality standards where technology-based limits failed to do so, which directly improve water quality by reducing pollutant loads to the waterbody. Id. at 2. The State began submitting TMDLs as separate documents (which also include an implementation plan) in 1994. Since then, the State has established 17 TMDLs that have been approved by EPA. Id. at 3-4.

EPA also reviewed the schedule that has been set by the State to establish the remaining TMDLs, and determined that it was reasonable and consistent with EPA’s national policy. Prog. Rev. at 9-20. The schedule covers all listed waters with minor exceptions. Id. at 13. The schedule calls for the completion of all TMDLs by 2011, which, considering the number and complexity of the TMDLs that must be established, is consistent with EPA’s national policy that state schedules provide for the completion of all TMDLs in 8-13 years. 64 Fed. Reg. at 46,027. The schedule also is generally in accordance with the state’s priority rankings except where technical reasons make it necessary or advantageous to develop TMDLs for a lower priority water sooner. Prog. Rev. at 14.

EPA evaluated whether TMDL development was evenly spaced and determined that California’s schedule is acceptable despite the fact that in two Water Quality Control Regions a disproportionate number of TMDLs are scheduled for the last year. Prog. Rev. at 14-16. EPA determined that the schedule is reasonable because the State intends to complete many of the last-scheduled TMDLs earlier, more technically difficult TMDLs are scheduled earlier (so that it would be reasonable to complete TMDLs more rapidly in the later years), and the State will gain experience in establishing TMDLs, which will also reduce the time required to do the later TMDLs. Finally, the schedule will be reviewed in the next listing cycle, giving both the State and the Agency an opportunity to revise it as appropriate.

EPA determined that the schedule provides a reasonable amount of time for the State to establish the remaining TMDLs. In particular, EPA determined that it would not be feasible for the State to significantly shorten the schedule. Prog. Rev. at 16-19. This conclusion was based on a recognition of the resources available to the State and EPA to develop technically and legally defensible TMDLs, the lack of water quality data necessary for TMDL development for many of the state’s waters, lack of technical information necessary to establish TMDLs for waters significantly impaired by nonpoint sources and waters with intermittent or ephemeral flows, and the state’s process for establishment of a TMDL (and accompanying implementation plan) that requires adoption by the Regional Water Quality Board, the State Water Board, and the state’s Office of Administrative Law. Id.

EPA also reviewed the level of resources the State has committed to the TMDL program. Prog. Rev. at 28-32. EPA concluded that the level of resources committed by California has increased significantly since 1997 and is adequate to meet the state’s commitments, at least through the next five years. The State currently has approximately $7 million annually in dedicated funding for TMDL development, of which approximately $4 million is state funding and $3 million is federal grant money. Prog. Rev. at 28-29. In addition, EPA has committed $1 million annually in EPA staff time and contract support to TMDL development. Id. at 28. EPA determined based on the TMDLs to be established in that period (88 per year) and the estimated average cost of establishing a TMDL in California ($75,000 to $115,000) that the state’s current level of resources is adequate to meet its TMDL commitments for the next five years. Id. at 29-30. While EPA recognizes that more resources may be necessary to establish the greater number of TMDLs scheduled for the following five year period, that provides no basis for EPA to conclude that the State’s current commitment is less than adequate and sufficient to meet the goals of section 303(d).

Based on its analysis of these factors, EPA’s determination that California is committed to the TMDL program, and that there is no need for EPA to establish TMDLs itself, is reasonable. The Southern District of New York recently rejected a claim identical to Baykeeper’s that EPA had a mandatory duty to issue TMDLs based on the constructive submission doctrine, and that the Agency had abused its discretion under the APA by failing to federalize New York’s TMDL program. NRDC III, 2000 WL 526696 at *11. There, New York had submitted no formal TMDLs to EPA prior to the suit being filed in 1994 (although the court found that there was triable issue of fact concerning whether water quality based effluent limitations developed in NPDES permits or other submissions constituted TMDLs). However, after the complaint was filed, New York enhanced its TMDL program, submitted several TMDLs to EPA for approval, and committed in 1996 to a schedule by which all TMDLs would be completed by 2005. 2000 WL 526696 at *8. The court found under those circumstances that EPA’s position that no "constructive submission" had occurred was a reasonable one:

Thus, to date, while New York has not promulgated TMDLs for every waterbody on its most recent § 303(d) list, it has unquestionably formulated and submitted some TMDLs, and has dedicated substantial resources to the problem and amply demonstrated its good-faith interest in collaborating with EPA to bring the State’s TMDL program to completion. On this basis alone, the Court can conclude that EPA’s decision not to declare a "constructive submission" of "no TMDLs" by New York is well-supported by the record.

2000 WL 526696 at *9 (emphasis in original). California has submitted TMDLs, has dedicated substantial resources to the program, and has demonstrated good-faith interest in collaborating with EPA to bring the State’s TMDL program to completion. Accordingly, EPA’s decision that there has not been a "constructive submission" of "no TMDLs" by California is not arbitrary and capricious and should be upheld.

Baykeeper’s claim that EPA has unlawfully withheld or unreasonably delayed establishing TMDLs in California is without merit because, as established above, EPA has no obligation to establish such TMDLs. In order for a claim to exist that an agency action has been unlawfully withheld, the agency must have a mandatory duty to perform the action. Madison-Hughes v. Shalala, 80 F.3d 1121, 1124 (6th Cir. 1996) (agency action unlawfully withheld only if there is a statutory duty for the agency to act); Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) (same). Similarly, in order for an agency action to be unreasonably delayed, the agency must be under some obligation to act./ As demonstrated above, EPA has no obligation to establish TMDL’s in California, and therefore there is no required agency action that can have been unlawfully withheld or unreasonably delayed. See NRDC III, 2000 WL 526696 at *11-12 (dismissing claim that EPA decision not to establish TMDLs was agency action unlawfully withheld or unreasonably delayed where EPA was under no mandatory duty because no constructive submission had occurred).

Furthermore, EPA has acted by making a formal determination that "California’s commitment to its TMDL program will succeed" and that there is no need for EPA to establish TMDLs. Att. 4 at 1-2. See Natural Resources Defense Council, Inc. v. Fox, 30 F. Supp. 2d 369 (S.D.N.Y. 1998) ("NRDC II") (determining when inaction by the State constitutes a constructive submission is a matter within EPA’s discretion); American Littoral Society v. Fox, Civ. No. 96-339, slip op. at 7-8 (D.N.J. June 29, 1999) (Att. D) (same). The only action required of EPA under section 303(d) is to review the submissions made by the State. 33 U.S.C. § 1313(d). Only if EPA disapproves those submissions does the Agency have a further duty to establish its own list or TMDL. Id. Thus EPA is obligated to act only if the state submits a TMDL for review, or under the constructive submission doctrine, only if the state submits "no TMDLs." NRDC III, 2000 WL 526696 at *12. As demonstrated above, there has been no such submission by California. Alternatively, if it can be construed that California has made some sort of submission with regard to TMDLs, or if the required "agency action" is EPA’s determination whether or not a constructive submission has occurred, EPA has taken action by thoroughly reviewing California’s TMDL program and determining that there is no need for EPA to take over the program and establish TMDLs. See section II.A, supra. Furthermore, any duty by EPA to establish TMDLs arises only if EPA disapproves a TMDL submitted by a state. Because EPA has not made such a disapproval, and in fact has determined that there is no need to do so, Baykeeper has no claim that EPA has unreasonably delayed establishing TMDLs. Therefore, EPA has met its obligations under the Act and there is no agency action to which Baykeeper is entitled that has been unlawfully withheld or unreasonably delayed.

In an apparent attempt to overcome the weakness of its constructive submission theory, Baykeeper contends (1) that states are required to establish TMDLs concurrently with the initial listing of a WQLS and (2) that EPA has a mandatory duty to disapprove the non-submission of those TMDLs, which duty "attached" at the time the list was submitted. Baykeeper SJ Br. at 18. Neither of these contentions has merit. Nor has any court adopted this reading of section 303(d).

Nothing in section 303(d) requires states to submit TMDLs to EPA at the same time that they submit their lists of WQLS. To the contrary, the statute specifically contemplates a two-step process. First, states are required to identify waters for which technology-based effluent limitations and other required pollution controls will be inadequate to meet water quality standards and to establish a priority ranking of those waters based on the severity of the pollution and the uses of the waters. 33 U.S.C. § 1313(d)(1)(A). States are then required to establish TMDLs for those waters "in accordance with the priority ranking." Id. § 1313(d)(1)(C). States are to submit lists and TMDLs to EPA "from time to time." Id. § 1313(d)(2).

Baykeeper’s contention that all TMDLs must be established simultaneously with listing is inconsistent with the statutory requirement that the states establish a priority ranking of listed waters and develop TMDLs in accordance with those rankings. If TMDLs for all waters had to be established immediately upon listing, the statutory provision requiring priority rankings would be meaningless. As stated by the Southern District of New York:

Even as to TMDls required for states' early lists of waterbodies (e.g., prior to 1979), the statute imposes no drop-dead date for submission of all such TMDLs. Rather, the Act states that TMDLs are to be established "in accordance with the [state's] priority ranking" of affected waterbodies and shall be submitted to EPA from "time to time, with the first such submission not later that [June 26, 1979]. . . . To read the Act to require submission of all TMDLs for states' early waterbody lists by June 26, 1979, might well render the provision for establishment of TMDLs "in accordance with the priority ranking" of waterbodies nonsensical, given the very short time period in which all such submissions would be considered due.

NRDC II, 30 F.Supp.2d at 376. Thus, Baykeeper’s reading of the statute violates the well-established principle that statutes should not be read in a way that renders a portion of them superfluous. E.g., Dunn v. Commodity Futures Trading Comm’n, 519 U.S. 465, 472 (1997).

Moreover, Baykeeper’s contention is inconsistent with the legislative history of the 1972 Amendments, which indicates that Congress intended EPA and the states to place their primary effort on implementing technology based standards through NPDES permits. The Conference Report discussion of section 303 states:

The Administrator should assign secondary priority to this provision to the extent limited manpower and funding may require a choice between a water quality standards process and early and effective implementation of the effluent limitation-permit program.

* * * *

If a State has limited resources and Federal program funding is inadequate, the primary state effort should be devoted to effective implementation of the new program and, to the extent not inconsistent, existing water quality implementation plans rather than assigning needed personnel to the added functions required under Section 303.

Legislative History at 171 (Att.1). This legislative directive is entirely inconsistent with Baykeeper’s contention that states were to develop TMDLs immediately upon listing.

Furthermore, EPA has long interpreted section 303(d) not to require the submission of TMDLs for every listed segment at the time of listing. 43 Fed. Reg. 60,662, 60,664 and 60,666 (Dec. 28, 1978). Because this issue is not clearly addressed by the statute, EPA’s interpretation is entitled to considerable deference and must be upheld unless unreasonable. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). EPA’s interpretation is reasonable and consistent with the statutory requirement that TMDLs be established in accordance with priority rankings developed by the states.

Baykeeper cites no judicial decision that supports its contention that TMDLs must be submitted concurrently with 303(d) lists, relying instead on cases that hold that the submission of no TMDLs for a prolonged period can constitute the constructive submission by the State of a determination that it will not submit any TMDLs. Baykeeper SJ Br. at 18. As demonstrated above, these cases are inapplicable here because California has both submitted TMDLs and demonstrated its intention to submit TMDLs for all waters on its 303(d) list. Baykeeper’s reliance on Alaska Ctr. for the Environment v. Reilly, 20 F.3d 981 (9th Cir. 1994), Baykeeper SJ Br. at 24, is inapposite. The question of whether TMDLs must be established when waters are listed was not before the court, and the portion of the opinion cited by Baykeeper is simply a paraphrase of the statutory requirements. Moreover, the one court that has explicitly addressed the issue has rejected Baykeeper’s contention. Kingman Park Civic Ass’n v. EPA, 1999 WL 148028 at *8-9 (D.D.C. 1999) (Att. E). In addition, Baykeeper’s contention has been rejected, either explicitly or implicitly, by all of the courts that have held that there can be no constructive submission where a state has submitted some TMDLs, even though the state has not submitted TMDLs for all waters on its 1998 303(d) list. For example, in Sierra Club, North Star Chapter v. Browner, 843 F. Supp. 1304 (D. Minn. 1993), the court stated:

Although Minnesota and the EPA may not be implementing TMDLs as quickly as plaintiffs would like, the Act does not set deadlines for the development of a certain number of TMDLs. The Act instead requires the development of TMDLs ‘in accordance with the priority ranking of the WQLS list.’

Id. at 1314. See also NRDC III , 2000 WL 526696 at *11 n. 6 (no constructive submission where state has submitted some TMDLs, quoting Sierra Club, North Star Chapter v. Browner). Baykeeper’s contention is thus inconsistent with both the statute and the case law and should be rejected.

B. The Court’s Jurisdiction Is Limited To Ensuring EPA’s Compliance With The Statute.

Baykeeper’s further contention that this Court can somehow enforce an EPA duty that "attached" at some point in the past is meritless./ This Court’s jurisdiction is limited to ensuring EPA’s current compliance with the Clean Water Act. Because, as demonstrated above, the Agency is currently in compliance, i.e., EPA’s mandatory duty to approve or disapprove has not been triggered by a "constructive submission" of no TMDLs, the Court has no jurisdiction. Nothing in the Clean Water Act or the APA gives the Court authority to compel EPA to comply with a hypothetical duty that may have existed at some point in the past, but which no longer exists.

The court in NRDC III recently considered and rejected a claim similar to the one being made by Baykeeper. The court stated:

[P]laintiffs are wrong to imply that recent efforts by EPA at compliance are per se insufficient to discharge EPA’s statutory duties because of the agency’s past failings. As the Court’s sole power in this context is to require EPA to conform its present conduct to the law, EPA’s past noncompliance is irrelevant to the question of the agency’s present compliance, and to whether the Court will grant the narrow relief prescribed by the CWA and the APA. Plaintiffs did not, and could not, acquire rights by virtue of EPA’s past failings, and the Court cannot, accordingly, provide any relief that goes beyond ensuring EPA’s present compliance with statutory mandates.

NRDC III, 2000 WL 526696 at *4 (emphasis in original); see also id. at *17 ("plaintiffs are wrong to suggest that the Court may punish defendants for any past inadequacies by interfering with EPA’s presently acceptable oversight of the TMDL program").

In this case, as in NRDC III, the question of whether EPA exercised adequate oversight of California’s TMDL program in the past is irrelevant. As demonstrated above, EPA has reasonably determined that California is committed to the development of TMDLs in a timely manner, and thus there has been no "constructive submission" that would compel EPA at present to disapprove California’s actions and establish TMDLs itself.

As demonstrated in the briefs filed in support of EPA’s motion for judgment on the pleadings, this Court lacks jurisdiction over Baykeeper’s third claim for relief, and the claim lacks merit because EPA has no mandatory duty to amend state-issued permits to incorporate the terms of a TMDL. EPA incorporates those briefs by reference in opposition to Baykeeper’s motion for summary judgment on its third claim for relief.

Baykeeper’s challenges to EPA’s approval of TMDLs for the Santa Ana River and the Laguna de Santa Rosa are without merit. First, Baykeeper lacks standing to challenge either decision. Even if Baykeeper had standing, its challenges should be rejected because EPA’s approval decisions are consistent with the requirements of the CWA and are not arbitrary and capricious. Courts owe administrative agencies considerable deference when they apply their expertise to making technical decisions. NRDC III, 2000 WL 526696 at * 20 ("In the face of conflicting evidence at the frontiers of science, courts’ deference to expert determinations should be at its greatest") (internal citation omitted). In these cases, EPA’s determinations are supported by the record and should be upheld.

Nowhere in its complaint, in its brief, or in its affidavits does Baykeeper allege any harm to it or its members resulting from EPA’s approval of TMDLs for the Santa Ana River and the Laguna De Santa Rosa. Therefore, Baykeeper has failed to establish standing to challenge those TMDLs in this Court.

In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Supreme Court affirmed the importance of the doctrine of standing to the constitutional principle of separation of powers stating that "the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Id. at 559-60. The Court went on to state that "the irreducible constitutional minimum" of standing contains three elements. First, the plaintiff must have suffered an "‘injury in fact’--an invasion of a legally protected interest which is (a) concrete and particularized, . . .and (b) ‘actual or imminent, not 'conjectural' or 'hypothetical.’" Second, there must be a causal connection between the injury and the conduct complained of, i.e., the injury has to be fairly traceable to the challenged action of the defendant. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-61.

The party invoking federal jurisdiction bears the burden of establishing these elements. Id. at 561. This burden is particularly heavy for a party claiming, as Baykeeper does here, that it will suffer harm because of an alleged failure by the government to regulate a third party. Id. at 561-62. Because any alleged injury in such a case is necessarily the result of the actions of third parties not before the Court, the plaintiff bears a heavy burden to show that the harm it alleges is directly traceable to defendants’ failure to regulate and could be remedied by an order of the Court. Id.

Baykeeper has not even attempted to bear that burden with respect to its claims concerning the Santa Ana River and Laguna de Santa Rosa TMDLs. None of the affidavits presented by Baykeeper allege use of these waterbodies, let alone any harm resulting from EPA’s approval of the TMDLs. Therefore, because Baykeeper has failed to allege any facts that would establish its standing, its motion for summary judgment on count 5 of its second amended complaint must be denied, and summary judgment granted for defendants.

B. EPA’s Approval Of A Total Inorganic Nitrogen TMDL For Reach 3 Of the Santa Ana River Was Reasonable

On November 9, 1994, the California State Water Resources Control Board submitted to EPA Region 9 a TMDL final report for total inorganic nitrogen in Reach 3 of the Santa Ana River. Nov. 9, 1994 Letter from Jesse Diaz to Steve Pardieck, Att. 5. (This is not the "Staff Report" cited to by Baykeeper. Baykeeper SJ Br. at 14-15./ That report was a 1991 report addressing the potential establishment of TMDLs for total dissolved solids ("TDS") and total nitrogen in this reach of the Santa Ana River. The 1994 Report was based on further analysis and concluded that implementation of the TMDL would result in attainment of the WQS.)

The Final Report identifies the Santa Ana River as the principal source of recharge for groundwater in Orange County, and states that the objective of the TMDL as protecting groundwater quality. Final Report at 1. The Final Report identifies the Prado Dam as the point for measuring compliance with the WQS because the dam represents the dividing line between the upper and lower river basins and is the point through which all surface and groundwater in the upper basin passes. Id. Thus it represents the appropriate place to ascertain compliance with WQS intended to protect waters in the lower basin, where most groundwater recharge takes place.

The Final Report describes the allocation of total inorganic nutrient wasteloads to direct and indirect dischargers to the river (including dischargers via groundwater) based on concentration and the historic and expected flows from those sources. Final Report at 3-4, 8. Lastly, the Final Report presents the results of computer modeling demonstrating that the wasteload allocations in the TMDL will result in compliance with the WQS.

By letter dated December 6, 1994, EPA approved the TMDL. Att. 7. EPA determined that the modeling used by the State was acceptable and demonstrated that implementation of the TMDL would result in attainment of water quality standards.

Baykeeper’s assertion that EPA’s approval of the Santa Ana total inorganic nitrogen TMDL was contrary to the requirements of the CWA is without merit. Baykeeper’s first assertion, that the TMDL will not achieve the water quality standards (Baykeeper SJ Br. at 32) must be rejected because it is based entirely on statements in a 1991 staff report that were superceded by the State’s 1994 Final Report. The Final Report submitted to EPA in support of the TMDL demonstrates that the TMDL will result in attainment of the standards. Final Report at 3-4, 8. Baykeeper’s second contention, that the TMDL fails to account for the total load to the river, is also based on the superceded 1991 Staff Report. Baykeeper SJ Br. at 32. The final TMDL imposes concentration limits based on the design discharge values (i.e., the discharge volumes) of the sources of discharge to the river. Final Report at 3-4, 8. Thus, the TMDL does account for the total mass of inorganic nitrogen being discharged to the river.

Baykeeper’s third contention, that EPA failed to consider a margin of safety, Baykeeper SJ Br. at 33, is also contradicted by the record. The memorandum supporting EPA’s approval of the TMDL states:

The model provides multiple safety factors by making numerous conservative assumptions in its fate and transport component. In addition, the SARWQCB staff made additional conservative modeling assumptions to account for uncertainties concerning (1) the functions of two nitrogen sinks in the basin, and (2) the water quality benefits of the Bunker Hill groundwater desalter.

Analysis to Support Approval of California’s Total Inorganic Nitrogen TMDL for Santa Ana River, Att. 8, at 3. Thus, EPA clearly did consider the margin of safety and reasonably determined that the TMDL met that requirement.

Baykeeper provides no evidence from the record to support its contention that there are significant non-point source discharges of nitrogen to the river that were not considered in development of the TMDL. Baykeeper SJ Br. at 33. Moreover, the support documentation for the TMDL demonstrates that contributions from nonpoint sources were considered in developing the TMDL. Final Report at 5. More fundamentally, the choice of what sources to allocate load reductions to is up to the state, as long as the state can demonstrate that the water quality standards will be met, which California did in this case by the modeling demonstrating that implementation of the TMDL will achieve the water quality standard. Courts owe great deference to administrative agencies when applying their expertise to technical matters. NRDC III, 2000 WL 526696 at *20. In this case, EPA’s determination that the TMDL will achieve water quality standards is based on the record and there is no basis for this Court to find that EPA’s approval of the TMDL was arbitrary or capricious.

Baykeeper’s final argument, that establishment of the Santa Ana TMDL was inconsistent with California’s priority ranking, Baykeeper SJ Br. at 33-34, is irrelevant to the lawfulness of EPA’s approval of the TMDL. Nothing in the Clean Water Act prevents EPA from approving an otherwise valid TMDL simply because the state chose to do it out of order.

On March 21, 1995 the Regional Water Quality Control Board ("Regional Board") submitted to EPA a "Waste Reduction Strategy for the Laguna de Santa Rosa" as a TMDL. March 21, 1995 letter from Benjamin Kor to David Smith (Att. 9) ("Kor letter"). The purpose of the strategy was to address occurrences of high ammonia and low dissolved oxygen concentrations. Kor letter at 2. The Regional Board determined that both of these problems could be addressed by controlling the loading of nitrogen to the water, primarily by controlling discharges from dairies, reducing the discharge of pollutants from urban stormwater runoff, and reducing nitrogen discharge from the City of Santa Rosa’s Subregional Wastewater Treatment Plant./ Id. at 6. The flows in the Laguna Santa Rosa are highly variable, both between seasons and within a season between storm events and non-storm conditions. In addition, because the levels of ammonia and dissolved oxygen that the Strategy is intended to address are the result of the activity of organisms on nutrients in the water, including nutrients in solid form that may settle to the bottom, the Regional Board determined that there is no meaningful correlation between loads discharged to the water on a daily basis and the conditions being addressed. Therefore, the Regional Board expressed the load allocations on a seasonal rather than daily basis. Kor letter at 4.

In accordance with EPA guidance, the Regional Board submitted the strategy as a phased TMDL. Under EPA guidance, a phased TMDL is appropriate where there is a lack of data regarding nonpoint source loadings or background levels and the TMDL includes allocations for nonpoint sources based on future controls. A phased TMDL must meet all the requirements for a TMDL, including the requirement that water quality standards be met. A phased TMDL must include a description of the implementation mechanisms for nonpoint sources and a schedule for their implementation. Such a TMDL must also include monitoring requirements to ensure that the projected reductions in loading are occurring.

The Regional Board estimated loadings of nitrogen that would result from planned controls in 1996 and 2000, and estimated the resulting concentrations of ammonia and dissolved oxygen. The Regional Board recognized that its estimates fell short of the amount necessary to achieve compliance in the summer, however, the Regional Board believed that its calculations overestimated the loadings of nitrogen because they unrealistically assumed that all water discharged to septic tanks (which are a major source of summer flow) would reach the Laguna de Santa Rosa. Kor letter at 5. In addition, the TMDL included a program of monitoring and analysis that would allow the TMDL to be refined as new data were developed.

By letter dated May 4, 1995, EPA approved the Waste Reduction Strategy as a TMDL. May 4, 1995, letter from Alexis Strauss to Benjamin Kor (Att. 10); "Analysis to Support Approval of TMDLs for Laguna de Santa Rosa, CA," April 20, 1995 (Att. 11). EPA specifically addressed the phased approach of the TMDL the fact that the calculated load reductions were not sufficient to meet the water quality standards. Analysis at 4-5. EPA found that three factors suggested that these expected exceedences would not prevent significant improvements in summer water quality or cause significant impairment of beneficial uses. First, the estimated summer loadings were likely to be overestimated because of conservative assumptions about the flow of water from septic tanks to the waterbody. Second, the contribution of nitrogen loadings to ammonia and dissolved oxygen problems was likely overestimated because of conservative assumptions concerning the behavior of nitrogen in the waterbody. Third, nutrients in solid form discharged during the winter may settle out and contribute to ammonia and dissolved oxygen problems in the summer . Therefore, eliminating those winter discharges as called for by the Strategy would reduce summer ammonia and dissolved oxygen problems more than the amount calculated by the Regional Board. For these reasons, as well as the fact that the Strategy called for monitoring of water conditions, EPA determined that the Strategy could be approved as a phased TMDL. Id. at 5.

Baykeeper’s assertion that EPA’s approval of the ammonia and dissolved oxygen TMDL for the Laguna de Santa Rosa was contrary to the requirements of the CWA is also without merit. Baykeeper’s contention is that the TMDL is invalid because the load limits are expressed in terms of seasonal rather than daily loads. However, "Congress in one sentence, directs EPA to approve TMDLs for hundreds of different pollutants in thousands of different waterbodies, and it is excessively formalistic to suggest that EPA may not express these standards in different ways, as appropriate to each unique circumstance." NRDC III, 2000 WL 526696 at *22-23 (affirming EPA’s interpretation that expression of a pollutant as an annual loading was approvable as a TMDL). EPA’s regulations provide that a TMDL can be expressed in terms of "mass per time, toxicity, or other appropriate measures." 40 C.F.R. § 130.2(i). EPA’s interpretation of a statute is entitled to considerable deference and must be upheld if reasonable. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). This deference clearly applies when and agency "defines a term in a way that is reasonable in light of the legislature’s revealed design." United States v. Haggar Apparel Co., 526 U.S. 380, 392 (1999).

In this case, flows in the waterbody are substantially different in the different seasons and are also strongly affected by storm events. Kor letter at 4. In addition, the conditions being addressed by the TMDL are not the pollutants being discharged themselves, but the result of biological activity on the discharged pollutants. Id. Accordingly, although the State could have expressed the TMDLs on a daily basis, EPA determined that the State’s choice to express the TMDL as a seasonal load optimally accounted for pollutant delivery in this water. EPA’s interpretation is reasonable and consistent with the goal of the statute, which is to ensure attainment of water quality standards, and thus should be upheld.

Baykeeper’s second argument is that the Waste Control Strategy should not have been approved as a TMDL because it does not ensure attainment of water quality standards. However, EPA’s approval was based on EPA’s belief that the Waste Control Strategy would, in fact, achieve the standards because EPA believed that the Strategy overestimated the extent to which the ammonia and dissolved oxygen standards would be exceeded because of conservative assumptions about the flow from septic tanks and the behavior of nitrogen compounds in the waterbody. Analysis at 4-5.

Moreover, EPA approved the Strategy as a "phased" TMDL. Under guidance developed by EPA, the Agency may approve a phased TMDL where there is limited data to determine how to attain WQS and the TMDL provides for a monitoring and revision plan for review of the TMDL if necessary. U.S. EPA, Guidance for Water Quality-Based Decisions: The TMDL Process (1991) (Att. 3) ("TMDL Guidance") at 15-16 . However, the phased TMDL must meet the statutory requirements for a TMDL, including attainment of the WQS. Id. Nothing in section 303(d) prohibits the use of such an approach, which is particularly appropriate for a situation such as the Laguna de Santa Rosa, where the condition being addressed is the result of a complex interplay between the pollutants being discharged to the river and the biological community in the river, and is not simply a matter of reducing the amount of pollutants coming out of pipes to achieve a defined concentration in the waterbody.

Based on the conservative assumptions included in the Strategy, which create a large margin of safety, and the fact that the Strategy provided for monitoring and potential revision to ensure attainment of standards, EPA’s decision to approve the Strategy as a TMDL was not arbitrary or capricious.

For the reasons stated above, Baykeeper’s Motion for Summary Judgment should be denied and EPA’s Cross-Motion for Summary Judgment should be granted.

Respectfully submitted,

LOIS J. SCHIFFER

Assistant Attorney General

_________________________

NORMAN L. RAVE, JR.

S. RANDALL HUMM

Trial Attorneys

Environment & Natural Resources Division

P.O. Box 23986

Washington, D.C. 20026-3986

Telephone: (202) 616-7568

ROBERT S. MUELLER, III (SBN 59775)

United States Attorney

CHARLES M. O’CONNOR (SBN 56320)

Assistant United States Attorney

Chief, Environment & Natural Resources Unit

450 Golden Gate Avenue - P.O. Box 36055

San Francisco, California 94102

Telephone: (415) 436-7180

Attorneys for Defendants

Of Counsel:

KARYN I. WENDELOWSKI

Office of General Counsel

GARY HESS

Office of Regional Counsel, Region 9

U.S. Environmental Protection Agency

June 5, 2000

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of June, 2000, I caused true and correct copies of the foregoing Defendants’ Brief in Opposition to Baykeeper’s Motion for Summary Judgment and In Support of Defendants’ Cross-Motion for Summary Judgment with accompanying attachments to be served by first class mail, postage-prepaid, on the following:

Michael R. Lozeau, Esq.

Deborah A. Sivas, Esq.

Earthlaw Environmental Clinic

Owen House

553 Salvatierra Walk

Stanford, CA 94305-8620

Thomas N. Lippe, Esq.

Law Offices of Thomas N. Lippe

One Market Plaza

Steuart Tower, 16th Floor

San Francisco, CA 94105

Nora J. Chorover, Esq.

Law Offices of Nora J. Chorover

515 Jackson Street

Albany, CA 94706

Leo O’Brien, Esq.

San Francisco BayKeeper

Presidio Building 1004

P.O. Box 29921

San Francisco, CA 94129

Colin Lennard, Esq.

Patricia J. Chen, Esq.

Fulbright & Jaworski L.L.P.

865 South Figueroa Street

Twenty-Ninth Floor

Los Angeles, California 90017-2576

Steven P. McDonald, Esq.

Jon K. Wactor, Esq.

Stephanie E. Kish, Esq.

Luce, Forward, Hamilton & Scripps LLP

600 West Broadway, Suite 2600

San Diego, California 92101-1414

Margaret Rosegay, Esq.

Sarah G. Flanagan, Esq.

Pillsbury Madison & Sutro LLP

50 Fremont Street

P.O. Box 7880

San Francisco, California 94120-7880

_____________________________

Norman L. Rave, Jr.