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Ohio Valley Environmental Coalition, Inc. v. Pruitt

United States Court of Appeals, Fourth Circuit

June 20, 2018

OHIO VALLEY ENVIRONMENTAL COALITION, INC.; SIERRA CLUB; WEST VIRGINIA HIGHLANDS CONSERVANCY, INC.; WEST VIRGINIA RIVERS COALITION, Plaintiffs - Appellees,
v.
SCOTT PRUITT, Administrator, United States Environmental Protection Agency; CECIL RODRIGUES, Acting Regional Administrator, United States Environmental Protection Agency, Region III, Defendants - Appellants.

          Argued: May 8, 2018

          Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:15-cv-00271)

         ARGUED:

          James Anthony Maysonett, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

          Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES, INC., Lewisburg, West Virginia, for Appellees.

         ON BRIEF:

          Jeffrey H. Wood, Acting Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, David J. Kaplan, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; James Curtin, Stefania Shamet, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C., for Appellants.

          Patrick Parenteau, Jill Witkowski Heaps, Rachel L.B. Stevens, Environmental and Natural Resources Law Clinic, VERMONT LAW SCHOOL, South Royalton, Vermont; Todd D. Ommen, Pace Environmental Litigation Clinic, ELISABETH HAUB SCHOOL OF LAW, White Plains, New York, for Amici National Wildlife Federation, Waterkeeper Alliance, Incorporated, and Riverkeeper, Inc. Joel C. Beauvais, Claudia M. O'Brien, Stijn Van Osch, LATHAM & WATKINS LLP, Washington, D.C., for Amici National Association of Clean Water Agencies, National Cattlemen's Beef Association, and National Mining Association. Douglas Crouse, Robert G. McLusky, JACKSON KELLY, PLLC, Charleston, West Virginia, for Amicus West Virginia Coal Association.

          Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE

         Several environmental groups brought this action against the Environmental Protection Agency. They allege that EPA failed to perform its nondiscretionary duty under the Clean Water Act to promulgate pollutant limits for biologically impaired waters in West Virginia. The district court concluded that Plaintiffs have standing to bring this claim and granted summary judgment in their favor. We agree that Plaintiffs have standing, but, for the reasons that follow, we reverse the grant of summary judgment.

         I.

         Congress enacted the Clean Water Act "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The Act instructs each state to establish "water quality standards, " subject to EPA review and approval. Id. §§ 1313(a)-(c), 1362(3). Water quality standards consist of the "designated uses" of a state's waters and "water quality criteria" necessary to support those designated uses. Id. § 1313(c)(2)(A); 40 C.F.R. § 130.2(d).

         When existing pollution controls are not sufficient, such that a body of water cannot support its "designated uses, " a state must classify that water as impaired. 33 U.S.C. §1313(d). Section 303(d) of the Act requires a state to place its impaired waters on a list ("the 303(d) List") and to establish a priority ranking of the impaired waters, accounting for the severity of the pollution. Id. A state must submit its list every two years, and EPA must approve or disapprove the list. 40 C.F.R. § 130.7(d)(1). If EPA disapproves a 303(d) List, then EPA itself must establish a list of waters within thirty days of disapproval. Id.

         The Act further requires a state to develop a total maximum daily load ("TMDL") for waters on the 303(d) List in accordance with its priority ranking. See 33 U.S.C. §1313(d)(1)(C). A TMDL establishes the maximum daily discharge of pollutants into a water, which ultimately translates into enforceable permit limits. See id. A state must submit its TMDLs to EPA "from time to time." 33 U.S.C. §1313(d)(2). Once a state submits a TMDL, EPA must approve or disapprove it within thirty days. Id. If ...


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